Bombay High Court
Shankar S/O Lahanu Salunkhe vs The State Of Maharashtra on 15 June, 2023
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1942 OF 2023
IN APEAL/463/2023 WITH APEAL/463/2023
SHANKAR S/O LAHANU SALUNKHE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. K. N. Shermale
APP for Respondent: Mrs. V. N. Patil Jadhav
...
CORAM : S. G. MEHARE, J.
DATE : 15.06.2023
PER COURT :
1. Heard the learned counsel for the applicant. The learned
A.P.P waives service of notice for respondent/State.
2. The applicant was tried for the offences punishable under
Sections 302, 323, 504 and 506 of the Indian Penal Code. However,
the learned Additional Sessions Judge, Sangamner, District
Ahmednagar on appreciating evidence held the accused guilty for the
offences punishable under Sections 304 Part II, 323, 504 and 506 of
the Indian Penal Code. The applicant has been sentenced to suffer
Rigorous Imprisonment for 10 years for the offences punishable under
Sections 304 Part II i.e. maximum punishment imposed by the learned
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Additional Sessions Judge Sangamner.
3. The learned counsel for the applicant has referred to the
medical evidence and tried to convince the Court that the injury was
not possible due to alleged weapon used in the crime. There was
delay in medical examination of the deceased and performing the post
mortem. He also referred to the evidence of the eye witnesses and
vehemently argued that it was the deceased who instigated the
applicant and therefore, the incident happened. There are no
circumstances to believe that the offence against the applicant is
proved under Sections 304 Part II of the Indian Penal Code. It was a
case of single blow. Relying on the case of Bhagwan Rama Shinde
Gosai And Others Vs. State of Gujarat 1999 DJLS (SC) 614, he would
argue that the applicant has been sentenced for a fix period. He has
already undergone two years of imprisonment, therefore, this Court
may liberally suspend the sentence. There are no exceptional
circumstances to refuse the suspension. The past of the
applicant/accused was unblemished. He is the bread winner of his
family. The appeal may takes it's time and there are no chance of
hearing of the appeal on merits in the near future. For the above
reasons, he claims suspension of sentence.
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4. Per contra, the learned A.P.P. Mrs. Vaishali N. Patil Jadhav
has argued that there was no reason to the accused/convict to assault
the deceased with a wooden log. The applicant was aggressive and
this is the exceptional circumstances to believe that he may be harmful
to the society. For no reason the accused killed the deceased.
Therefore, the sentence cannot be suspended.
5. Perused the impugned judgments and orders. The learned
Additional Sessions Judge has observed that there is a evidence that
initially deceased slapped the applicant/convict and he got angry and
left away and again came with his wife and then the incident
happened. The applicant picked up the wooden log laying on the spot
and gave a single blow on the head of the deceased. The question
whether that act is out of the anger or instigation by the deceased
may fall for consideration. The learned Additional Sessions Judge
imposed maximum sentence of 10 years it is a fixed period.
6. Considering the past of the applicant and the way in
which the incident happened the Court believe that there are no
exceptional circumstances to refuse the suspension. The statutory
right of the applicant/accused needs to be protected as there is no
possibility of immediate hearing of the appeal in near future.
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7. The ratio laid down in the Bhagwan Rama Shinde Gosai
and Others ( supra) is squarely applicable to the case at hand. Hence,
the application deserves to be allowed. Hence, he following order :--
ORDER
(i) The application is allowed.
(ii) The execution, implementation, effect and operation of the
judgment of conviction of learned Additional Sessions Judge,
Sangamner in Sessions Case No. 42 of 2022 dated 29.94.2023
is suspended till the conclusion of the appeal.
(iii) The learned counsel for the applicant states that the applicant
is ready to deposit the fine amount with the Sessions Court,
Sangamner, District Ahmednagar forthwith.
(iv) Applicant be released on bail on P.B. and S. B. of Rs. 50,000/-
with one solvent surety of the like amount on the conditions that
he shall not flee away from the justice and pursue the appeal to
dispose it of at the earliest.
(iv) Bail before the learned Additional Sessions Judge, Sangamner.
(v) Unless the applicant deposit the fine amount, the release
warrant of the accused/appellant shall not be issued.
(vi) Call record and proceedings.
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(vii) List the Criminal Appeal N o. 463 of 2023 in due course.
( S. G. MEHARE )
JUDGE
ysk
